Thomas Calls Second Amendment High Court's 'Constitutional Orphan'

21 February 2018, 06:39 | Katrina Lee

Firearms are shown for sale at the AO Sword gun store in El Cajon California

While gun control advocates argued that the waiting period allowed ample time to run background checks, Second Amendment advocates argued that gun owners who already passed background checks or had concealed carry licenses shouldn't have to wait 10 days. And California's waiting period applies to new gun purchases even if the owner already possesses another legal weapon.

U.S. Supreme Court Justice Clarence Thomas says at some point we're going to be "fatigued with everyone being a victim" in conversation with Judge of the United States Court of Appeals for the Armed Forces Gregory E. Maggs at Library of Congress in Washington, D.C.

The court's order comes at a sensitive time as the country is reeling from the latest school shooting in Parkland, Florida. Florida Governor Rick Scott said during a joint news conference.

Thomas noted that a major issue is that the appropriate level of scrutiny of Second Amendment cases has never been made clear, and by not taking cases like Silvester, the Supreme Court is perpetuating the confusion.

The Ninth Circuit, Thomas wrote, applied the wrong standard of review in weighing the constitutionality of the waiting period. And, he said, the court had not clarified the standard for reviewing gun regulations for nearly 10 years. "And the lower courts seem to have gotten the message", Thomas added.

As a result, he said, lower courts are "failing to protect the Second Amendment to the same extent that they protect other constitutional rights".

"The right to keep and bear arms is apparently this court's constitutional orphan", Thomas wrote.

Blaming cert denials like today's for "enabl [ing] this kind of defiance", Thomas noted that the court has "not heard argument in a Second Amendment case for almost eight years".

In another gun case, the high court also declined to take up the National Rifle Association's challenge to California's refusal to lower its fees on firearms sales and instead use a surplus generated by the fees to fund efforts to track down illegal weapons.

Moreover, Thomas said he suspected that four members of the court would vote to review a 10 day waiting period for abortions, or a 10-day waiting period on the publication of racist speech, or a 10 minute delay of a traffic stop because "abortion, speech and the Fourth Amendment are three of its favored rights".

They focused their challenge only on the cooling-off period, Thomas wrote, quoting the finding by the trial court that only 20 percent of background checks are approved automatically and completed in less than two hours. The delay was initially meant to allow time for background checks, and while those now take far less time electronically, state officials say the waiting period also acts as a deterrent against suicides and other impulse shootings.

Conservative Justice Clarence Thomas issued an opinion blasting his colleagues for failing to take up the challenge of California's waiting period.

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